Polish Constitutional Court's position on restrictions on the pharmacy market - ‘Pharmacy for the Pharmacist 2.0’ law amendment unconstitutional

In a judgment of 18 September 2024 (K 15/23), the Polish Constitutional Court found that the much-discussed amendment to the Pharmaceutical Law, widely known as Apteka dla Aptekarza 2.0 (Ada 2.0) or Pharmacy for the Pharmacist 2.0, contravenes the Polish Constitution in the way it was introduced.

Ada 2.0 restricts the ability of entities or individuals who are not licensed pharmacists from taking control of pharmacies. Specifically, Ada 2.0 provides for the following:

• It prevents the acquisition of control, within the meaning of competition and consumer protection legislation, of an entity operating a pharmacy that is open to the public by persons other than pharmacists or companies with pharmacists as shareholders and by entities that already operate, directly or indirectly, at least four pharmacies open to the public;
• It prevents the acquisition of control of an entity operating a pharmacy that is open to the public by persons who are members of a company authorised to operate a pharmaceutical wholesaler or a pharmaceutical intermediary; and
• It increases penalties for unlawful takeover of a pharmacy.

Ada 2.0 came into force as a result of an amendment to the Act on Export Insurance Guaranteed by the State Treasury and Certain Other Acts (Export Insurance Act). Introduced only at the stage of parliamentary work, Ada 2.0 is not directly related to the provisions of the Export Insurance Act and was not subject to consultation with the concerned communities.

In the judgment, the Constitutional Court did not examine the provisions of the amendment in a substantive way. Instead, the court focused only on the compliance of the procedure of enacting Ada 2.0 with the Polish Constitution and ruled the assessed legislative process unconstitutional.

The Court pointed out that it was impermissible to introduce, by way of an amendment to the draft, provisions that were not related to the original intention of the amendment. Hence, the amendment circumvented the constitutional requirement related to the legislative initiative and the obligation to present the financial effects of the law.

In accordance with the Polish Constitution, Ada 2.0 will cease to be in force on the day the judgment is published in the Journal of Laws.

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